Sunday, June 23, 2013

Is Islamic Law Law?

We usually think of "law" as referring to rules enforced by government. I have now read most of a 14th century text on Islamic law (also available online), and one conclusion is that that is a misleading way of looking at the subject. It is true that many of the rules are enforceable by the state, but that, seen from within the system, is not what they are really about. Ultimately, all of the rules are seen as enforced not by the state but by God.

That point is illustrated by a mistake I made in my initial attempts to understand the system. In Islamic law, there are five categories of acts, ranging from obligatory to forbidden. I thought an obligatory act was one you could be legally punished for not doing, a recommended act one that you should do but were not legally obligated to do, and so on down the list. In fact, if my current source is correct, that is not what the categories mean. An obligatory act is one that God will reward you for doing and punish you for not doing. A recommended act is one that God will reward you for doing but will not punish you for not doing. The distinction has nothing to do with what the state will or will not punish.

In an earlier post, I raised the question of what the difference is between punishment and failure to reward. I think, although I am not certain, that I now understand the answer in the context of Islamic law. As best I understand the view, at least the version presented in the book I have just been reading, all Muslims eventually make it to heaven—although that has to be qualified by the observation that someone with sufficiently heretical beliefs doesn't count as a Muslim even if he thinks he does. Punishment is what a Muslim has to go through before he gets there, reward is what he gets when he finally makes it. Hell, for Muslims, is purgatory. It is permanent only for some non-Muslims.

The distinction between state law and divine law is paralleled by the distinction between taxes in the sense most of us are familiar with—money we have to give the government to be spent as it chooses—and zakat, Islamic religious "tax." The rules for how much you owe are similar in both systems. The difference is in whom you owe it to.

A good Muslim is supposed to pay an amount of zakat based on how much crop he has produced during the year or how much wealth of certain sorts he has. The money goes to eight categories of recipients: the poor, those in need, travelers, unpaid warriors for Islam, ... . In three of the four schools of law, it is supposed to be evenly divided among the categories, in one the payer is free to allocate it as he wishes.

But in all schools, as best I can tell, the payer is free to decide who in each category gets his money. He can, if he wish, pay the money to the ruler, who is then supposed to hand it out appropriately. He can, if he prefers, pay it to some private individual who will distribute it for him—and is entitled to one of the eight shares as payment for doing so. He can distribute it himself. Again, the ultimate obligation is to God and exists whether or not there is a ruler to enforce it.

In traditional Islamic law, some court verdicts were enforced by the state. In particular, Hadd offenses, offenses against rules thought of as Koranic with fixed punishments, resulted in state punishment. I expect that is still true in Saudi Arabia. Some other offenses were subject to ta'zir punishment, meaning that the judge could specify a punishment as long as it was lower than the punishment for the corresponding Hadd offense.

So the short answer for the traditional system is that some of the rules of Islamic law were enforceable in the courts and some were not. On the other hand, I noticed that there were some cases where a contract was forbidden by religious law--but enforceable in the courts.

Also, the religious law does have rules about the ruler--what obedience is or isn't owed to him, what his obligations are, how he is or is not entitled to treat rebels.

I should add that "'the law' is the Koran as interpreted by whatever judge you are standing in front of" does not describe the traditional legal system and probably does not describe the current Saudi system.

For one thing, Islamic law is based on three sources of which the Koran is only one. The second source is the traditions of what Mohammed and his companions did and said. The third is consensus—past agreement of legal scholars on interpretations of the first two.

For another, it is very unlikely to be the judge who is doing the interpretation. The judge may well be getting his legal interpretation from the mufti, and neither the mufti nor the judge is likely to be basing legal rules on his own interpretation of the original sources. Almost certainly both of them are working off the interpretation produced by multiple generations of legal scholars in whichever school of law that judge follows.

There are 2 aspects to sharia (law) The rules (halal/haram).....including shades of permissibility. This falls under the category of religious rules and do not have punishments as it is between man an God.The other category is law (jurisprudence) and is called fiqh. This is mostly similar to any other system of law in that it considers cultural practices, precedents, legal formulations, consensus....etc. fiqh or jurisprudence is justice between man and man. Therefore various types of compensation or punishment are prescribed.The systems of law are based on 3 conceptsRetributive justiceRestorative justiceDeterrent justice

I do not think you are correctly defining the difference between Shari'a and fiqh. As best I can tell from my reading, Shari'a is what religious law ought to be--law in the mind of God, so to speak. Fiqh is the human attempt to approximate Shari'a, known to be imperfect.

I note, for instance, that treatises on fiqh include information on what actions are sunna, desirable as imitations of what Mohammed did but not required.

It is true that terms can be confusing because we use them from our own perspective.

Sharia includes things like how to pray...etc. For example, within Muslims there are some difference in understanding permissiblity/non-permissibility in some aspects of dietary laws....etc.....but these are religious laws---that is, they have to do with the religious aspects rather than with aspects of "justice/jurisprudence"

Fiqh uses Quran and Sunna as well as other methodologies---these differ according to which Sharia school one is following.